Pot shots

Aug 11, 2010 at 12:00 am

It looks as if there's going to be a showdown between the American Civil Liberties Union and Michigan cities it says are using questionable tactics in an apparent attempt to address medical marijuana-related activity within their borders.

The ACLU has sent letters to the cities of Bloomfield Hills and Birmingham asking that they either clarify or rescind recently adopted ordinances the group says could "severely and unlawfully" burden "the rights of medical marijuana patients and caregivers under the Michigan Medical Marihuana Act."

In both cases, the cities approved ordinances with identical language, declaring that it "shall be unlawful for any person or business to engage in any activity, conduct, use or venture in the City that is contrary to federal, state or local laws or ordinances ..."

Livonia previously passed an ordinance containing similar language, but has not yet been contacted by the ACLU. 

Although Michigan law now sanctions the use of marijuana by state-approved patients, and allows designated caregivers to grow plants, any use or possession is still technically a violation of federal law.

Adding yet another dimension to the controversy, though, is a directive issued by the U.S. Justice Department last October telling federal prosecutors in the 14 states where medical marijuana has been approved that they should make prosecution of patients and caregivers a low priority.

In other words, the ACLU is saying, while the feds are signaling they won't harass legitimate patients and caregivers, municipalities such as Bloomfield Hills and Birmingham are passing ordinances that attempt to use violation of federal law as a way to curtail what would otherwise be legal activity.

Birmingham City Attorney Timothy J. Currier did not return messages seeking a response. Bloomfield Hills City Attorney William P. Hampton tells Metro Times that the ACLU is "jumping to conclusions," saying that the ordinance referenced in the group's letter is not a "medical marijuana ordinance."

It's not clear what the purpose of such an ordinance would be other than to address medical marijuana use. However, whatever the motivation for the ordinance, the ACLU says it is clearly illegal.

In addition to that ordinance, Bloomfield Hills was slated to discuss a second ordinance that will attempt to use zoning laws to "forbid cultivation or sale of medical marijuana in the city," according to an e-mail from Hampton.

Repercussions from the act, which became law after 63 percent of the state's voters gave the ballot measure their approval in 2008, are just beginning to become clear as municipalities grapple with issues created by the act.

Of particular concern to the municipalities are businesses that distribute pot to patients. So-called "compassion clubs" have been established to dispense medical marijuana to qualified patients in some municipalities. Such operations represent a "gray area" in the law that is expected to be clarified in court at some point. Although the medical marijuana law clearly states that sale of pot is prohibited, caregivers are allowed to recover expenses associated with growing. Caregivers are allowed to grow as many as 12 plants per patient, and can have as many as five patients. That means caregivers who are also registered patients can grow as many as 72 plants at one time.

What they can do legally with excess pot is one of the ill-defined areas of the law, which Hampton describes as "terribly written."

Detroiter Tim Beck, who had a hand in helping draft the ballot measure approved by voters, has previously said that it was intentionally broad to give patients and caregivers as much latitude as possible while limiting the size of grow operations so as not to attract the attention of federal authorities.

A number of municipalities have recently approved ordinances designed specifically to curtail the opening of businesses where marijuana is sold to patients. 

While the legality of dispensary-like operations may be an open question until sorted out by the courts, the ordinances recently passed by Bloomfield Hills and Birmingham are clearly illegal, says ACLU attorney Daniel S. Korobin.

"We've seen other cities pass ordinances that appear to have some regulatory language," Korobin says. "But these are the only two cities we've seen that appear to be attempting to ban medical marijuana outright. That is why we've focused on them by sending these letters."

The ACLU's legal basis for challenging the legality of the ordinances is clearly spelled out:

"The Michigan Supreme Court has held that a municipality is precluded from enacting an ordinance if the ordinance is in direct conflict with the state statutory scheme," Korobin wrote in letters to the two cities.

Even if the intent of the ordinances is to address the issue of dispensaries or large growing operations, they lack legal merit because they are overly broad, Korobin says.

As written, Korobin explains, either patients or caregivers could be prosecuted for activities clearly allowed under the law.

"These ordinances appear to make it completely illegal to use medical marijuana in Birmingham and Bloomfield Hills," he says. "We are very concerned that patients and caregivers in these two cities will fear being arrested for something they are legally entitled to do under state law."

He adds that, in both cities, voters clearly showed support for allowing medical marijuana. When the measure was voted on in 2008, 70 percent of Birmingham's voters and 66 percent of the voters in Bloomfield Hills cast ballots in favor of the measure, Korobin points out.

If the cities do not address the concerns being made by the ACLU, it could end up causing them to spend time and money defending their actions in court. 

"We're still waiting to hear back from them," Korobin says. "Hopefully they will agree with our analysis."

And if they don't?

"We're standing ready to protect the rights of patients and caregivers in Birmingham and Bloomfield Hills and wherever else they may run into these kinds of problems."

Curt Guyette is Metro Times news editor. Contact him at 313-202-804 or [email protected]